Report to the Committee on Better Governance for Wales White Paper

Welsh Liberal Democrat Group

At the outset, I must make clear that I would not have started from here. The approach taken by the White Paper does not meet the aspirations of my party nor achieve the advances recommended by the Richard Commission in its widely commended and evidence-based report. In short, it is a lost opportunity. The proposals are founded, yet again, on political compromise within a single party rather than the long-term interests of the people of Wales.

The White Paper is an incomplete document, addressing the development of the executive and largely silent on the development of the legislature side. It is this latter area where this committee has its most significant task. This aspect of the White Paper also reinforces the need for this Assembly to be responsible for developing its own Standing Orders, with Secretary of State involvement purely as a fallback in the event of the Assembly not being able to reach agreement.

The main differences from the Richard Commission’s unanimous recommendations are that:

• They proposed a stable constitutional settlement but the White Paper would lead to a state of uncertainty and continuing debate for years, perhaps even decades, ahead.
• They proposed a single short interim phase, in the context of a clearly adopted destination, but the White Paper proposes two interim phases and no certain destination.
• They proposed to simplify the basis of devolution, so people do not have to be legal experts to understand whether responsibility lies in Cardiff or London but the White Paper makes such easy understanding utterly impossible by introducing further complications and a process of continuous change.
• They proposed to maintain the well established clarity between primary legislation and secondary legislation, after a short run-in period, whereas the White Paper blurs that distinction on a long-term basis.
• They proposed to match enhanced legislative powers with enhanced scrutiny but the White Paper places legislative power largely in the hands of the executive without the matching enhancement of the Assembly’s scrutiny capacity.
• They proposed to increase the capacity of the Assembly to discharge a wider range of functions and to effectively scrutinise legislation, in order to match the greater power of the executive, by increasing the size of the Assembly to 80 AMs - still far smaller than the Scottish Parliament - but the White Paper finds it convenient to place all the extra resources in the hands of the executive.
• They proposed an electoral system which would be roughly equivalent in terms of party advantage to the present system, whereas the White Paper makes a single change to the existing system which would benefit of one party and potentially remove experienced AMs of opposition parties, thus weakening the scrutiny capacity of the legislature.

In this evidence, I shall comment in the context of a White Paper which I regard as profoundly inadequate. I do so reluctantly and solely because I recognise that the votes of some 22% of the British population may have enabled the Government to force through the narrow party interests reflected in the White Paper.

Motions for an Order in Council The mechanism by which the Assembly formally makes a request for an Order in Council is a key issue. A closed model would be where the right to put down such a motion would be restricted to the executive In this model, the extent and direction of expanded powers of the legislature would be dictated by the executive rather than the legislature itself.

A more open model would allow any member via a 'private members bill’, or opposition party via their minority party debate to put down such a motion. That would be a more democratic and transparent basis for the exercise of the right of initiative.

Related issues are the process by which such a motion to request further powers is scrutinised and whether it is amendable. If such a motion is scrutinised through subject committees and is amendable in plenary, then there are opportunities for the terms of the motion to be amended both informally (via comments and suggestions in committee) and formally (amendments in plenary).

If an executive motion is harder or even impossible to amend, again the terms in which the Welsh settlement expands becomes an executive rather than a legislature preserve. An open and amendable motion gives the legislature the opportunity to contribute to shaping the way ahead.

Legislative scrutiny

Both the introduction of 'framework’ legislation, promised by the UK government for future Wales only bills and clauses; and the wider delegation of powers promised through the Order in Council route will make the Assembly’s SI and other regulations more complicated and involve greater discretion as to their contents.

It is vitally important both for sound law making and for confidence in the Assembly’s functions (from the people of Wales and the MPs /Peers who will decidethe Assembly wider powers) that these are scrutinised properly. We don’t want to limit the role of subject committees in carrying out policy reviews or scrutiny of the executive and Assembly sponsored public bodies. That means there needs to be a significant expansion in our committee capacity - to enable a level of scrutiny which parallels that which takes place in Westminster standing committees. It would soon discredit the whole concept of devolved government if half-baked measures were adopted through inadequate scrutiny.

The Scottish experience suggests that, with only 129 members, they have struggled to have a standing committee structure without an adverse impact on the rest of the parliamentary structure, i.e. plenary sittings, subject committees etc. Yet, this may be the only way to bring together enough AMs for sufficiently long periods without prejudicing the ongoing work of subject committees. This dilemma underlines the inadequacy of a mere 60 AMs - never more than 30 of them in opposition and some of those already loaded with additional responsibilities - to scrutinise proposals from the Welsh Assembly Government.

Already the demands on committee timetables vary, with some committees having far greater legislative demands on them than others. This further change will only exacerbate this disparity. If subject committees were also given the role of legislative scrutiny, given that a House of Commons Standing Committee might devote up to 100 hours of scrutiny to a single bill and it then goes to the House of Lords for further detailed scrutiny, these disparities would become huge and probably unmanageable.

To say the least of it, such an added responsibility would make essential more flexible committee timetables. However, it seems inconceivable that committee members, especially from opposition parties each having only one or two members on each committee, could both carry out the ongoing work of the committee and this fluctuating burden of intensive extra work. It highlights the imperative nature of the need for 80 AMs to fulfil these extra responsibilities.

Given our present number of AMs, the minimum size that a committee responsible for scrutiny at any stage of the process would need to be would be 8. This would provide for a balance of opinion, party and experience across the committee.

The extra responsibility on members to provide scrutiny of the executives’ new powers would demand an increased resource available to the APS to provide that support.

Private bills

A further issue that hasn’t been highlighted in the White Paper so far is the issue of private bills, many of which would be in the areas over which the Assembly would have a variant of primary legislative powers. To ensure a coherent legislative structure whether this would remain vested in Westminster or move to the Assembly and how to ensure that they are part of the wider Welsh legislative structure needs to be considered.

'Sewel’ motions

'Sewel motions are a device in the Scottish Parliament to allow the UK Parliament to pass legislation ordinarily devolved to Scotland. Whilst there is a debate in Scotland at the moment on the appropriateness of their use, it seems obvious that a similar mechanism will need to be devised for Wales.

'Policing’ the border

Serious thought needs to be given to the creation of an office within the UK government akin to that of the Advocate General for Scotland. Her role involves judging where the devolution line falls between the responsibilities of the Scottish and UK legislatures. With a settlement that has less clarity and more grey areas than the Scottish settlement, the position of both the executive and legislature law officers from both the UK and the National Assembly side needs to be carefully thought through

How does SO31 change?

The process by which our private members bill system operates will need to be examined. In the same way that the options for the government are made both wider and more complicated so will the system for private members bills. For example, will private members bill be able to encompass areas that have not yet been subject to delegation?

Could a private members bill call for a specified area to be delegated with a specified piece of legislation cited as the example of its use? This would enhance the range of opportunities of the SO31 route, though would reduce its chances of success. Would resources be made available to members successful in the SO31 ballot to develop the extra tier of detail so required? SO31 under the present powers of the Assembly places a substantial (if largely welcome) burden on individual members’ shoulders. To expand this system would reinforce the role of the private members bill but would need a recognition of the extra burden.

Secretary of State discretion over tabling

I do not believe there is a compelling reason for the Secretary of State to have discretion in his gatekeeping role. Although it is unusual for non-members of parliament to be able to insist that orders are laid, there are precedents, such as the boundary commissioners / committees (parliamentary and local government). The affirmative resolution model already has the thresholds of requiring approval from both houses. To require the tacit approval of the Secretary of State as well seems an unnecessarily high threshold.

Programme

The UK government has a Queen’s Speech setting out its programme for the next year. Although not required to be an exhaustive list of every last piece of legislation intended, it does set out most such legislation. The Scottish Parliament has a similar, if less formal, procedure with a First Minister’s statement on anticipated legislation over the next year.

The opportunities presented by the White Paper surely provide the trigger for the National Assembly to make a similar move. The forward plan of legislation presented to each committee already provides the building blocks for such a report. But consolidating them, together with requests for further powers and other significant items of business would enhance the Assembly’s position in Welsh life and allow all interested parties to know the Welsh Government’s intentions over the next year.

The 'withering on the vine’ of the need for primary legislation bids does provide the opportunity for some sort of equivalent 'OrdersinCouncil’ bids process; which would take on a 'Queen’s Speech’ like quality.

Access to the law

The blurred distinction between primary and secondary legislation will give rise to problems of access to the law. Normally, lawyers and even individual citizens can look at the comparatively limited volumes of primary legislation to find the basic law and then refer to secondary legislation for some of the detailed implementing measures. In our case, both principles and detail would be contained in secondary legislation. Furthermore, when primary legislation is amended by further primary legislation, the relevant legal texts are updated. This would not happen if we amend by secondary legislation.

The Assembly has already recognised this problem under its existing powers. It has funded work by Cardiff University Law Department to make information available systematically on the internet. Far more will need to be done if the scope of our secondary legislative powers is enlarged to cover many matters which are normally dealt with only in primary legislation.

Conclusion

The White Paper has chosen do go down paths which I would not have chosen as the way ahead. I have illustrated some of the problems but I have done so in a constructive spirit, trying to minimise these inherent weaknesses. However, an enormous amount will need to be done to put the legislature in a position to exercise even minimally effective scrutiny. The White Paper offers no solutions to the problems it has created.

Michael German AM

July 4^th 2005